* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 00-10306

Summary Calendar

 

DANTE D’AGOSTINO,

Plaintiff-Appellant,

versus

NFN BAKER, Officer; ET AL,

Defendants,

NFN BAKER, Officer, Correctional Officer III;

C. HARTNESS, Correctional Officer III,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 1:96-CV-377

--------------------

September 24, 2001

Before DAVIS, BENAVIDES and STEWART, Circuit Judges.

PER CURIAM:*

Dante D’Agostino, Texas prisoner # 688309, appeals the jury

verdict rendered in favor of the defendants after a trial on his

42 U.S.C. § 1983 complaint alleging the excessive use of force

against him by the defendants. D’Agostino’s appeal stems from

several rulings made by the magistrate judge presiding by consent

at his pre-trial hearing.
No. 00-10306

-2-

The exclusion of testimony, or of other evidence, is

reviewed for an abuse of discretion. United States v. Pace, 10

F.3d 1106, 1115 (5th Cir. 1993). This court will affirm an

evidentiary ruling unless the district court abused its

discretion and the appellant’s substantial rights were affected. 

United States v. Phillips, 219 F.3d 404, 409 (5th Cir. 2000).

D’Agostino first complains that the magistrate judge erred

in failing to issue a writ of habeas corpus ad testificandum to

produce an inmate witness at trial. Because D’Agostino’s

objection, made on the morning of trial, was untimely, the

magistrate judge did not abuse its discretion in failing to issue

the writ. See Pace, 10 F.3d at 1115. 

In his brief, D’Agostino also asserts that he requested that

the trial be postponed until Shaw could be produced. However,

the transcript of the pre-trial hearing shows that he made no

such request. Therefore, review is only for plain error. 

See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1527

(5th Cir. 1996) (en banc). This court “will not substitute [its]

judgment concerning the necessity of a continuance for that of

the district court unless the complaining party demonstrates that

it was prejudiced by the denial.” Streber v. Hunter, 221 F.3d

701, 736 (5th Cir. 2000). Because he has failed to provide this

court with an affidavit from the inmate witness, or any other

evidence, to show what testimony the inmate witness would have

given, and because the inmate witness’ testimony from the first

trial was inconclusive, D’Agostino has failed to demonstrate

prejudice. Streber, 221 F.3d at 736.
No. 00-10306

-3-

D’Agostino next argues that the magistrate judge erred in

failing to have the defendants produce original photos of the

use-of-force incident. He argues that the copies provided to him

were grainy and that he was only given copies of three photos

when five were actually taken. The record reflects that

D’Agostino could have resolved these issues prior to the morning

of trial. Because D’Agostino’s objections were untimely, the

magistrate judge did not abuse its discretion in proceeding to

trial without ordering the production of all of the original

photos. See United States v. De La Rosa, 171 F.3d 215, 219 (5th

Cir. 1999).

Finally, D’Agostino argues that the magistrate judge erred

in refusing to honor his request for blank, signed subpoena forms

in accordance with FED. R. CIV. P. 45(a)(3). Because D’Agostino

did not raise this issue in the district court, it is reviewed

only for plain error. See Douglass, 79 F.3d at 1427. D’Agostino

has not demonstrated that his substantial rights were affected

because he has failed to provide evidence to this court

indicating what the testimony of any missing witness would have

been. See Highlands Ins. Co. v. Nat’l Union Fire Ins. Co. of

Pittsburgh, 27 F.3d 1027, 1031-32 (5th Cir. 1994).

D’Agostino has filed in this court a motion to strike the

appellees’ letter brief. He contends that they are incorrect in

asserting that he failed to preserve the inmate witness issue for

review. The appellees are entitled to argue their belief that

D’Agostino has failed to brief a certain issue. 

AFFIRMED. MOTION TO STRIKE DENIED.